1602034 (Migration)

[2016] AATA 4703

1602034 (Migration) [2016] AATA 4703 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maysaa Achkar

VISA APPLICANT:  Mr Jaafar Alachkar

CASE NUMBER:  1602034

DIBP REFERENCE(S):  BCC2015/3722829 CLF2014/79422

MEMBER:Mary Cameron

DATE:23 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 23 November 2016 at 10:57am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 February 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 December 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the applicant genuinely intended to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 26 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. The visa applicant has never been to Australia and therefore there is no evidence of any failure to comply with the conditions of any previous visa.

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

13. There is no evidence to suggest that the visa applicant is enrolled in any course of study or that he will work in Australia. There is no evidence before the Tribunal that the visa applicant would be entitled to a substantive visa, other than a protection visa, whilst in Australia. Based on the evidence before it, which is set out below, the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of a permitted stay. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

14. The visa applicant is a 22-year-old male and a national of Lebanon. He is one of 12 siblings, three of whom are residing in Australia. The review applicant is his sister who is an Australian citizen. She lives in Broadmeadows with her three young children. She is recently separated from her husband.

15. The review applicant has made submissions according to which the purpose of the visa applicant’s proposed visit to Australia is to spend some quality time with his sister and two brothers and nieces and nephew and to see some local sites and tourist attractions.

16. Her submission is that favourable consideration should be given to the fact that two of the visa applicant’s siblings have previously travelled to Australia on different dates and complied with their visa conditions. She has provided copies of those persons’ passports to verify compliance with Australian immigration laws. (Tribunal file, ff. 41-43). She submits that as the visa applicant himself not had any past opportunity to comply with Australian visa conditions this should not negatively prejudice his application. Her submission is that the visa applicant is aware of the importance of complying with the conditions of any visa he might be granted, as he has several close family members living in Australia and siblings who have travelled temporarily to Australia, and who have successfully navigated Australia’s immigration laws. She submits that he intends to, and will, comply with the conditions to which any visa granted would be subject.

17. The review applicant has provided a statutory declaration stating that she wants her brother to visit her and her family in Australia for up to six weeks. He has secure employment in Lebanon as a professional painter in a job he has held since early 2013. Two of her brothers have travelled to Australia previously and enjoyed their time in Australia and complied with their visa conditions. She hopes that the visa applicant will travel over the New Year so that the family can take him sightseeing while their children are on school holidays. Her brothers who live in Australia are very much looking forward to seeing their younger brother. The visa applicant has his parents and eight siblings in Lebanon and has never previously parted from them. They are a law abiding family and will comply with all immigration requirements. They do not wish to jeopardise their family reputation in any way.

18. At the Tribunal hearing the review applicant told the Tribunal that the visa applicant lives in Akkar in the north of Lebanon. He is her younger brother and although he is not yet engaged or married he has a girlfriend in Lebanon. There are twelve siblings in the family. The review applicant and two of her brothers live in Australia. Each of them migrated on the basis of spousal relationships with their Australian partners. The other nine siblings live in Lebanon as do their parents. The review applicant told the Tribunal that the visa applicant is the one who provides the most support and assistance to her parents with whom he lives. Their mother has significant health concerns, and the visa applicant assists her by taking her to doctor’s appointments and helping her at home.

19. The review applicant told the Tribunal that the visa applicant would like to visit Australia for about six weeks. She will take him sightseeing around Melbourne but not elsewhere. She explained that she is pregnant with her fourth child and in the context of her recent marital separation she would like her brother’s company and support. She also really wants him to come and meet her children.

20. The review applicant gave evidence that the visa applicant works as a painter. She has provided the Tribunal with a document titled ‘Work Statement’ from the visa applicant’s employer stating that he has worked for an architect’s office in Halba since 2013 and his monthly salary is 1.2 million Lebanese pounds. The letter states that he has been granted eight weeks unpaid leave. (Tribunal file, f.39). The parties have provided evidence of the visa applicant’s savings of 5 million Lebanese pounds in his Bank Audi Account (Tribunal file, f.43).

21. The Tribunal discussed with the review applicant independent country information regarding the security situation in North Lebanon, noting in particular that the most recent Report of the Department of Foreign Affairs and Trade on Lebanon (18 December 2015) states that:

    Since the previous DFAT Country Information Report on Lebanon dated 25 February 2014 and DFAT Thematic Report on Sectarian Violence in Lebanon dated 18 September 2013 incidents of violence influenced by long-standing sectarian tensions decreased, ostensibly in response to successful interventions by the Lebanese authorities and cooperation between traditionally opposing actors (including Hizballah, which has played some role in safeguarding domestic security parts of the country). Security plan is implemented in a number of locations by the Lebanese Armed Forces and a formal dialogue between the Shi’a Hizballah and Sunni dominated Future Movement has contributed to stable security situation.

    However, this stability is being constantly tested by the conflict in neighbouring Syria, including through the large influx of Syrian refugees, and the presence in Lebanon of extremist groups, such as Daesh and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon. Overall, DFAT assesses that Daesh and al-Nusra currently have an increasing capacity and influence in Lebanon, and that civilians face a moderate risk of violence, depending on their location. For example, recent incidents of violence linked to Daesh and al-Nusra have targeted Alawite and Shi’a interests. DFAT assesses the potential for Daesh and al-Nusra to launch attacks in Sunni dominated areas is unlikely.

    Mount Lebanon Governate, Nabatiye Governate and South Governate are broadly stable and DFAT is not aware of any recent illustrative examples of sectarian violence. The current security situation in the North Governate, Beka’a Governate and Beirut Governate is more uncertain….(the report goes on to discuss the influx of Syrian refugees into North Lebanon).

22. The Tribunal also noted that the Australian Smarttraveller official advice (DFAT, 26 August 2016) is for Australians to strongly reconsider a need to travel to Lebanon at the present time because of the unpredictable security situation as a result of the conflict in neighbouring Syria and ongoing political and sectarian tensions, and which states that the situation could deteriorate without warning.

23. The review applicant stated that she could assure the Tribunal that the area where the visa applicant lives is very safe and there have been no problems in the immediate vicinity. She stated that it is not fair to generalise about the whole region. In this regard the Tribunal has also considered her written submissions which suggest that the visa application should not have been refused based on generalised information about civil unrest in Lebanon, and describe the visa applicant’s individual circumstances with reference to the general country information. Her submissions also provide reference to recent tourism data which suggests increasing stability in Lebanon (Tribunal file, f.49).

24. Her submission states that, in relation to the visa applicant’s familial and individual circumstances, it should be noted that his brothers Ali and Ahmed have both travelled to Australia in 2004 and 2008 respectively during a period of heightened instability in Lebanon, and since then general security conditions have improved. Both of them were also in similar circumstances to those of the visa applicant in that they were both young unmarried men at the time of their visits and were in a similar socio-economic situation to that of the visa applicant.

25. Her submission cites the DFAT Country Information Report above in relation to a decrease in incidents of sectarian violence in Lebanon. It cites the case of Khanam v MIAC (2009) FCA 966 as authority for the proposition that the visa should not be refused on the basis of the general security situation in the north of Lebanon. The Tribunal notes that in the case of Khanam the Court held that in assessing whether an applicant has a genuine intention to stay temporarily, the Tribunal must consider all of the applicant’s individual circumstances, including the claimed reason for visiting Australia. The Tribunal acknowledges this principle.

26. The review applicant’s submission states that the individual circumstances of the visa applicant include that he lives outside the problematic areas of Tripoli identified in country reports and has not personally experiences any security issues despite periods of sectarian conflict in the general area where he lives; that he has stable employment and living arrangements in his home country, and has a relatively high level of income and substantial savings. Her submission is that the visa applicant seeks to visit Australia only for a limited period; he seeks quality time with his sister and two brothers and nieces and nephews and to visit some local tourist sites; he has personal, financial and family ties in Lebanon including his family and girlfriend as well as gainful employment, and therefore has strong incentives to return to Lebanon after visiting Australia. The review applicant has also expresses a willingness to provide a security of up to AUD$20,000.00 as an indication that the applicant intends to comply with his visa conditions. She has told the Tribunal that she hopes to sponsor other family members, in particular her mother, to visit Australia in the future and would not wish to jeopardise this possibility by allowing the visa applicant to fail to comply with his visa conditions.

27. The Tribunal heard evidence from the visa applicant by telephone. His evidence was consistent with the evidence of the review applicant regarding his circumstances in Lebanon and his reasons for wishing to visit Australia. He (incorrectly) told the Tribunal that the review applicant lives with her husband, however the review applicant suggested that she and her husband have only very recently separated, and the applicant may have felt unable, for cultural reasons, to acknowledge this. The Tribunal accepts this as plausible and therefore affords this inconsistency in the evidence little weight.

28. The parties have acknowledged the delegate’s expressed concern in the primary decision record regarding security conditions in North Lebanon, and have addressed these general concerns in detail, as set out above. While acknowledging that the country information before the Department is correct, their submissions are that the visa applicant is not directly affected by the unpredictable security situation and unrest in his region. The Tribunal affords significant weight to the parties’ consistent evidence and their submissions in this regard. The visa applicant stated that he understood the importance of complying with the conditions of any visa granted and that he has no intention or desire to remain in Australia beyond the period of any visa granted.

29. The review applicant and the visa applicant have submitted that the compliance of the visa applicant’s brothers with the conditions of visitor visas in 2004 and 2008 should be regarded as a positive indication that he will comply with the conditions of any visa granted. The Tribunal finds their submissions in this respect to be plausible. The Tribunal also accepts that the parties do not wish to jeopardise the possibility of other members of their family visiting Australia from Lebanon in the future.

30. The visa applicant has significant family ties in Australia where three of his siblings reside, but has far stronger family ties in Lebanon where his parents and eight of his siblings live. The review applicant will provide accommodation for the visa applicant when he is in Australia and the Tribunal has before it evidence that she is in a financial position to do so (bank records, Tribunal file, ff. 44-45).

31. The parties have provided detailed evidence that the visa applicant will certainly return to Lebanon within the visa period. They have provided detailed submissions and consistent oral evidence regarding the purpose, timing and duration of the proposed travel of the visa applicant. They have also provided supporting documentary material which is set out above. The Tribunal finds their evidence to be plausible. The proposed duration of the visit is for up to three months, which is consistent with the expressed purpose of the visit.

32. Based on the evidence before it considered as a whole the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject: c1.600.211(b).

33. The Tribunal has considered each of the factors contained in cl.600.211 and for the above reasons the Tribunal is satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    DECISION

34. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Mary Cameron
    Member